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2 5th Feb 2009 Related Party Transactions Decision Making process Role of Shareholders Meeting Lee Kha Loon, CFA Head, Asia Pacific CFA Institute Centre for Financial Market Integrity khaloon.lee@cfainstitute.org

3 Related Party Transactions Decision Making Process Role of Shareholders Meeting Bail out related companies Cross Guarantees and Loans to Affiliates Privatization and sale of assets Transfer of wealth schemes Board and Shareholder Approval Types of transactions that need approval How to determine right thresholds Shareholding voting process RPT disclosure policies Page 3

4 The Chinese Grid: Ownership in China Construction Bank after its IPO in 2004 Page 4

5 View From the Top: How Li Ka-Shing controls Hong Kong s most valuable conglomerate Page 5

6 I Own You, You Own Him, He Owns Me: The Lee Family s Samsung Dynasty Page 6

7 BAIL OUT SATYAM COMPUTERS Chairman Raju ( Majority Shareholder ) proposed to BOD to buy two related companies ( in property and construction ) for USD1.6 billion on 16 Dec They seek only Board Approval shareholder approval not required. BOD approved the deals At Analyst briefing later that day Investors questioned the deal why invest in unrelated business? Independent valuation of the RPT deals not presented to investors, Chairman refused to even give name of the valuer Investors prefer distribution of cash as dividends Investors sold Satyam immediately; and the price fall resulted in margin calls and selling of shares. Page 7

8 SK CORP BAIL OUT SK Corp: A Series of Unfortunate Events 27 Feb 03 Prosecutors announce USD 1.2 billion inflated profits by SK Global (now SK Network). SK Chairman was charged on account manipulation 16 Apr 03 Sovereign discloses its expanded interest of 14.99% in SK Corp. 10 Jun 03 Hermes Pension petitions court for voting right suspension of three directors. 13 Jun 03 Chey Tae-Won, chairman of SK Corp., sentenced to three years in jail. 14 Jun 03 Hermes court petition succeeds. 15 Jun 03 SK Corp. s board approves bailout of SK Network including a USD 800m debt-to-equity swap. 22 Sep 03 Chey released on bail. 20 Nov 03 Sovereign announces its plan to oust three directors at AGM. 22 Dec 03 Local minority shareholder groups declare support for Sovereign. 26 Dec 03 SK Corp. sells 10% treasury shares to friendly parties. Share price declines reflecting end of proxy fight; chairman had acquired enough support at the forthcoming AGM. Page 8

9 SK CORP BAIL OUT SK Corp: A Series of Unfortunate Events 9 Jan 04 Son Kil-Seung, CEO of SK Corp., arrested on misappropriation of SK Shipping s corporate fund. 30 Jan 04 SK Corp. proposes to increase outside directors to over half of the board. 30 Jan 04 SK Corp. announces 2003 results net earnings declined by almost 90% due to losses of affiliates. 2 Feb 04 Templeton and Wellington each disclosed 5% stakes. Foreigners owned more than 50% of SK Corp. s shares. 22 Feb 04 SK Corp. proposes six new directors. Outside directors make up 70% of board. 12 Mar 04 Sovereign loses at AGM; ask for Chey to resign. 26 Mar 04 SK Corp. establishes a special committee to improve corporate governance. Page 9

10 Cross Guarantees and Loans to Affiliates Case Study: CNOOC. In 2004, shareholder approval was sought to deposit RMB6.6billion cash to parent company for a 3 year period. This amounts to 16.6% of NTA. It was approved as there was a very tight period ( over a Easter holiday ) for shareholders, especially foreign institutional shareholders to file the proxies. (A similar proposal in 2007 was voted down when the loan expired) Issue: How can voting mechanisms be improved such that investors are made aware of the issues on time, and more importantly, that the votes are proportional to their interests (i.e., voting is not enough mandatory one share one vote vs. voting by show of hands)? CNOOC won in 2004 because it was voting by hand, not poll. Therefore it is not enough for major shareholders to abstain. Page 10

11 Tunneling of assets Case Study: CNOOC.CNOOC holds exclusive rights to PRC offshore oil and natural gas exploration rights as stated in prospectus when listed. CNOOC s parent gave CNOOC a non compete undertaking at time of listing. In 2005 CNOOC sought minority shareholder approval to give consent to the parent to engage in competing business, both onshore and offshore. Minority Shareholders rallied and voted it down by 59.08%. Issue: Role of INEDS and IFA are critical. The 5 INEDS recommended in favor of the proposal to minority shareholders. The IFA offers nothing to justify the proposal, except that recent listings did have a get out clause; but CNOOC did not. The independence of a IFA is questionable and a key issue for discussion. Page 11

12 Samsung Transfer of Wealth Inheritance TAX of 1.6 Billion WON Kun-hee Lee Chairman Jae-Yong Lee (Son) Inheritance (1995) 6 Billion WON 2.3 Billion WON IPO in Billion WON 1.9 Billion WON S-One Samsung Engineering IPO in Billion WON Convertible Bond 23 Billion WON Convertible Bond 1.8 Billion WON Convertible Bond converted to 31.9% equity Convertible Bond 45 Billion WON SDS Cheil Communication Samsung Everland Samsung Electronics Converted to 29.7% equity IPO in 1998 Purchase Share Samsung Life Insurance Converted to equity Source: Sony vs Samsung by Sea-Jin Chang 15.3 Billion WON Page 12

13 Daewoo asset swaps, loans, subsidies Case Study A Forensic Study of Daewoo s Corporate Governance By Joongi Kim Related companies pressured employees to purchase Daewoo automobiles. Executives personally marketed cars with sales results linked to performance evaluations. In August 1998 KFTC fined Daewoo Corp USD3.6million for providing interest free loans to employees that purchased Daewoo cars through Daewoo Motor Sales between April 1997 May In 1998 Korean Fair Trade commission, KFTC discovered substantial, improper affiliate subsidization among chaebols. In the case of Daewoo, six companies improperly supported seven affiliates for USD329 million. Daewoo Corp and Daewoo Heavy Industries provided financial support to affiliates on non market terms by refraining from collecting receivables, purchase bonds and commercial paper under unfavorable conditions. KFTC fined Daewoo a modest USD9.5million. Page 13

14 Daewoo asset swaps, loans, subsidies Case Study A Forensic Study of Daewoo s Corporate Governance By Joongi Kim Related party transactions were also used for asset swaps among Daewoo subsidiaries at exaggerated values. Stronger affiliates would prop up weaker companies by purchasing overvalued assets at above market prices. In 1998 and 1999, Seoul Investment Trust Management ( Daewoo controlled company ) used 38 % of its funds to buy USD2.4 billion of bonds and commercial paper issued by various Daewoo Affiliates to support these Daewoo affiliates. Page 14

15 Board and Shareholder Approval Question 1: What types of RPTs are required to be approved by Boards and / or Shareholders? Are current list of transactions reported sufficient? What other types of transactions should we be looking at? Family owned companies transfer of wealth to next generation without having to pay estate duty. Example son or daughter of Chairman set up a private company in IT business that service the entire group of companies. Family members salary, benefits and compensation. Potential abuse by having generous pay schemes and benefits that may not require disclosures. This is especially for the medium and smaller size companies. Disclosure rules on executive compensation in Asia Pacific is weak. Page 15

16 Examples of related party transactions under FASB and IASB. FASB Services received or furnished, such as accounting, management, engineering and legal services; Sales, purchases and transfers of realty and personal property; Use of property or equipment by lease or otherwise; Borrowings and lendings; Guarantees; Maintenance of bank balances as compensating balances for the benefit of another; Inter-company billings based on allocations of common costs; Filings of consolidated tax returns. IASB Rendering or receiving of services; Leases; Purchases or sales of property and other assets; Purchases or sales of goods; Transfers of research and development; Transfers under license agreements; Transfers under finance agreements (including loans and equity contributions in cash or in kind); Provisions of guarantees or collateral; Settlement of liabilities on behalf of the entity or by the entity on behalf of another party. Page 16

17 Types of RPT outside the box Case Study A REITS listing in Singapore CITYSpring Infrastructure Trust The Manager of the REIT put into IPO prospectus a formula for fees based on share price performance. Within 3 months the share price shot up substantially. For the first financial period to 31 Mar 07 the REIT registered a loss of S$52million after paying fees of S$63 million to the Manager. Issue. Who is supposed to look after investors interest in ensuring that the fee schedule is reasonable? Is the manager carrying out his fiduciary duty by taking fees of S$63 million on a newly listed REIT when revenue is only S$47 million? What is the relationship between the Manager and the REIT? Is this a related party transaction? Page 17

18 Board and Shareholder Approval Finding the Right Solutions Question 2. What is the difference between board and shareholder approvals? Value thresholds determine when an RPT is to be voted on by directors or shareholders. Is there a right threshold? What is the right benchmark (i.e., net asset value, net tangible assets, book value or percentage of revenues)? Page 18

19 What Triggers Board Approval China India Indonesia Hong Kong Singapore Korea Value exceeding 300 million RMB or 5% of NAV must be approved by independent directors and discussed by the board. None specified. Board of directors consent required for contracts for sale, purchase or supply of goods, materials or services. No specific thresholds, but law provides that RPTs be deliberated on by directors, excluding interestedparty directors. Continuing related transactions are to be approved by the board of directors. No thresholds specified. By-laws often give blanket approval for directors to deal with company subject to disclosure to, and approval of, the board. A single RPT exceeding 1% of annual revenues or total assets or a set of RPTs with a combined total in excess 5% of revenues or total assets. Page 19

20 What Triggers Shareholder Approval China India Indonesia Hong Kong Singapore Korea If number of independent directors deciding on the RPT is less than three. Loans to directors, and the provision of facilities or office spaces to a relative of a director. No specific thresholds, but law requiring RPTs to be approved by independent shareholders. Value greater than HK$10 million or 3% of book value. Value equal to or more than 5% of group s audited NTA. No sharehold er approval required, only notificatio n after board approval. Page 20

21 Board and Shareholder Approval Question 3: What procedures does the Board use to monitor RPTs? In Malaysia internal audit is required to report to Audit committee related party transactions under the listing rules. In HK the CG code requires internal controls to be in place but not specified on reporting RPTs to the Audit Committee or Board. Page 21

22 Board and Shareholder Approval Question 4: Are Directors who have an interest in RPT required to disclose that interest to the Board and prohibited from voting on the RPT? Interested director not allowed to vote in Singapore, India and Thailand In China, independent directors approve the RPT after BOD discussion. Given lack of director independence, should ALL RPTs of a certain value be put to a vote? Given the dominant-shareholder ownership model among Asian companies, how effective are director approvals in preventing controlling shareholders from pursuing transactions that might be abusive to minority investors? The CNOOC shareholder proposal in 2004 and 2007 relating to loans to CNOCC finance, the parent and the 2007 shareholder proposal to give up offshore rights back to the parent are two good cases to review. Page 22

23 Board and Shareholder Approval Question 5: When a shareholder vote is required, do interested shareholders vote or abstain? China - Related shareholders cannot vote Indonesia Related shareholders cannot vote Hong Kong Connected persons cannot vote Singapore Connected persons cannot vote May OECD discussion group agreed that both interested directors and shareholders should abstain from voting. Page 23

24 Board and Shareholder Approval Question 6: Are companies required to develop policies and procedures ( and make it public ) for approval of RPTs? India A proposed law change that will require companies to maintain a register of RPTs and open to inspection by shareholders. The register is required to be signed by all the directors at Directors meeting. ( pg 21, India report ) China requires a separate committee on RPT. However SSE survey in 2008 shows that only 4.6% have complied. ( pg18, China report ) Korea case Sovereign Asset proposed setting up a RPT committee to oversee SK Corp operations in Malaysia - a separate circular is tabled at AGM that has two lists of RPT, one for revenue and recurring items; and a second one for capital items. Page 24

25 Board and Shareholder Approval Bank of China 2005 annual report disclosures. Report of Connected Party Transactions Committee. The Connected Transaction Control Committee comprises 4 members; Two EDs and two INEDs, chaired by INED. The committee is responsible for formulating policies and procedures for RPT identifying and examining RPTs according to Chinese laws and regulations. The CTCC met 4 times in 2005 and conducted an in depth study of RPT transactions. The annual report also has a separate section that details the types of RPT. Page 25

26 A sampling of related-party transactions disclosed to the Hong Kong Exchange Listed company C Y Foundation Group Ltd Wo Kee Hong (Holdings) Ltd Great Wall Motor Co Ltd China Resources Logic Ltd Sino Union Petroleum & Chemical International Ltd Central China Real Estate Ltd Lippo China Resources Ltd Hong Kong Chinese Ltd Honghua Group Ltd Advanced Semiconductor Manufacturing Corp Ltd Zhongda International Holdings Ltd Nature of disclosed transaction Acquisition of 100% of a company owned by chairman and his spouse Purchase of a unit of vintage Ferrari from a director and controlling shareholder Acquisition of companies in China Acquisition of China Resources Gas Ltd Acquisition of HK$600 million worth of shares from the Chairman of the Board Acquisition of 100% of CCRE Forest Peninsula from a connected person Joint announcement of continuing connected transactions (tenancy agreement) Continuing connected transactions (sales and purchases framework agreements) Continuing connected transactions (product sales, technology transfer and software licensing) Continuing connected transactions (sales of products and raw materials) Page 26

27 The Way Forward - A Collective Effort by. Investors Issuers Advisors Regulators Markets Page 27